Hill v. Colorado, 530 U.S. 703, 48 (2000)

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750

HILL v. COLORADO

Scalia, J., dissenting

chosen to precisely address crowding and physical intimidation: conduct shown to impede access, endanger safety and health, and strangle effective law enforcement"); id., at 14 ("[T]his provision narrowly addresses the conduct shown to interfere with access through crowding and physical threats"). The Court nevertheless concludes that the Colorado provision is narrowly tailored to serve . . . the State's interest in protecting its citizens' rights to be let alone from unwanted speech.

Indeed, the situation is even more bizarre than that. The interest that the Court makes the linchpin of its analysis was not only unasserted by the State; it is not only completely different from the interest that the statute specifically sets forth; it was explicitly disclaimed by the State in its brief before this Court, and characterized as a "straw interest" petitioners served up in the hope of discrediting the State's case. Id., at 25, n. 19. We may thus add to the lengthening list of "firsts" generated by this Court's relentlessly proabortion jurisprudence, the first case in which, in order to sustain a statute, the Court has relied upon a governmental interest not only unasserted by the State, but positively repudiated.

I shall discuss below the obvious invalidity of this statute assuming, first (in Part A), the fictitious state interest that the Court has invented, and then (in Part B), the interest actually recited in the statute and asserted by counsel for Colorado.

A

It is not without reason that Colorado claimed that, in attributing to this statute the false purpose of protecting citizens' right to be let alone, petitioners were seeking to discredit it. Just three Terms ago, in upholding an injunction against antiabortion activities, the Court refused to rely on any supposed " 'right of the people approaching and entering the facilities to be left alone.' " Schenck v. Pro-Choice Network of Western N. Y., 519 U. S. 357, 383 (1997). It expressed "doubt" that this " 'right' . . . accurately reflects our

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